The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1887-09-27
Supreme Court of the Hawaiian ISL
ands. In Banco. July Term, 1887.
WILLIAM MATsoN VS.. c. Y. AIoNA.

supreme OOurI OF the HAWAIIAN ISL
ands. In Banco. July Term, 1887.
WILLIAM MATsoN VS.. c. Y. AIoNA.
JUDD, G. j., M'CULLT J., PRESTON, j., BICRERToS
J.. tFoRNASDER J. ABSENT
This case was heard by the Chief
Justice and Circuit Judge Lyman, al
the last May Term of Circuit Court
of the Third Judicial Circuit, the jury
being waived.
The following is the decision of the
Court. which contains statement of
the case and the facts found:
This is an action to recover the
contract price Of certain hogs. In the
latter part of 1856, the plaintiff, in
pursuance of certain conversations
had between him and the defendant,
sent from San Francisco to his agent,
w. E. Scott. contract in writing,
which he had signed, to be executed
by the defendant. The contract is as
follows:
"SAN FRANCIsco. Nov. 10th, 1856.
L hereby agree to take from this
port for Hilo. for the term of one year
from date, on each and every trip of
the vessel on which l am captain,
forty (40) hogs for you, the price to
be nine 90 cents per pound on foot,
delivered at Hilo, net cash.
"(Sig9) WV. MArsoN.
accepted. (Sig.,) c. Y A1oNA"
Mr.. Scott took it to the defendant,
to whom he read and explained it,
and defendant accordingly signed it.
The plaintiff came along in his vessel,
the "Selina" a few weeks later, and
delivered the defendant so hogs at 81
cents pound, which defendant paid
for. The defendant claims that as
this was a deviation from the contract
price of nine cents, it must be con-
strued as rescission of the contract.
A rescission must be mutual. Capt
Matson says he distinctly told defend
ant that though he abated ! a cent a
pound on this lot, as he had bought
them cheap in San Francisco and had
sailed before he had learned that Aiona
had signed the contract, it was not to
be considered as annulling the con-
contract. On the 18th of February
the Selma with Matson as captain,
came along again and was wrecked
on the coast in the bay of Hilo. Her
load of hogs (some ITO in number)
was transferred to lighter by their
being towed through the sea singly,
by a line fastened to the hind leg.
They were then taken across the bay
and landed safely at Waiakea dock
and placed in warehouse where they
were cared for by Mr.. c. Hitch
cock, at Capt. Matson's request. The
defendant was informed by Captain
Matson that his hogs had come and
he was requested to take delivery of
them. On defendant expressing a
fear that the swallowing of sea water
would likely make the hogs sick and |
die, Capt. Matson agreed that they |
should be allowed to remain there
week to await the results. A week |
elapsed. and none of the hogs dying,
plaintiff again requested defendant to
take his hogs. On his neglecting to
do so, plaintiff sold and delivered to
Quong On Kee, some 70 of them, and
kept the remainder, and again ten
dered them to defendant, who said
there were too many sows among
them, and that they averaged too
much weight, that he wished hogs
weighing from 100 to $50 pounds.
after repeated efforts to find defend
ant, who left for Hamakua, pending
these transactions, plaintiffs attorney,
Mr.. d. II. Hitchcock, sold the hogs at
public auction, after four days adver
tisement. They realized four cents
pound. and this action is brought to
recover the difference between the
amount thus realized and the contract
price. We think that defendant has
shown no sufficient reason why he
should not be held to fulfllment of
his contract.
On well settled rules of law, we de-
cline to admit parole testimony to en-
large the contract, and show that these
particulars were agreed upon by the
plaintiff. They are not in the written
contract. 1t was explained to him
and he signed it with full knowledge
Of its contents. The contract contains
no particulars as to the sex of the hogs
nor what their average weight should
be. The hogs were shown in evidence
to be in good order and condition, and
were a merchantable article. The pos
sibility that they were injured by tax
ing in salt water while being hauled
from the wreck to the lighter VASE con
templated by the parties, and the re-
suits show that they were not injured.
1t is contended that the majority of
these swine was "sows," and that this
contract called for "hogs," which do
not mean or include "sows" Wecan-
not agree with this contention The
word ~heg" means swine of either sex
when used in describing this animal
as the subject of contract of sale; and
no distinction of sex is made. as the